This blog, Criminal HIV Transmission, a collection of published news stories, opinion, and resources about so-called 'HIV crimes', has now been incorporated into the new HIV Justice Network website, and will not be updated as of November 15th 2012.
For more information about the HIV Justice Network, please visit http://www.hivjustice.net

The first draft of the proposed new article removed much of the most draconian provisions (i.e. allowing for prosecutions of an HIV-positive partner despite an HIV-negative partner's full, knowing consent to unprotected sex) leaving only intentional exposure or transmission a criminal offence. Broad stakeholder consultation agreed with this draft.

At a mid-2011 hearing, the National Council's Committee on Social Security and Public Health (tasked with the re-drafting of the Law on Epidemics) appeared to be open to moving back towards the original draft. The Committee explicitly recognised that the present criminalisation of consensual unprotected sex between a person with HIV and one without undermines prevention efforts and the principle of shared responsibility of both sexual partners.

However, at the end of 2011 the Committee produced further amendments that discarded the disclosure defence but which added "lack of scruples" and "self-serving motives" as alternative elements of intent. The Committee remained split on the question of negligence with the majority opting to retain the section and the minority recommending it be stricken.

So it came as a very welcome surprise that, when the bill finally reached the National Council for debate and final vote yesterday, an amendment by Green MP Alec von Graffenried was proposed at the last minute and almost immediately and overwhelmingly passed by 116 votes to 40.

A transcript of the entire proceedings (in a combination of French and German) are available here, but below I quote the full (unofficial) English translation of von Graffenried's speech (courtesy of Nick Feustel) explaining his amendment.

In short, he says that the Law on Epidemics needs to deal only with public health issues, such as bioterrorism, and not address harm to individuals. He notes that general assault laws already exist to punish egregious cases of HIV transmission and that much of the proposed bill is not only redundant, but confusing. "You can't be 'negligent', 'malicious' and 'unscrupulous' at the same time, that's just not logical," he argued, quite convicingly.

Advocates in Switzerland were overjoyed at this unexpected turn of events, but one government insider warns that we should not celebrate too early. The bill must now go through the Health Commission of the Council of States (upper house), before it goes to a final vote, and this could take some time (June is mooted, but not definite) and so there may still be further amendments.

For now, however, the clear logic and rationality of von Graffenried is to be celebrated.

Hopefully these developments will have an impact on other countries, too, notably Norway where a similar commission is debating changes to laws that are eerily similar in purpose and outcome to Switzerland's notorious and outdated Article 231.

Von Graffenried's Speech

"I speak for the parliamentary group of the Green Party, but of course also in part for my proposition as an individual. This is about punitive laws, we are talking about the amendment of Article 231 in the Penal Code. Reading the draft doesn't really make you understand what the Commission was about. So I stopped short and then tried to make it clearer in my proposition. As Mrs Schenker explained earlier, there were still some unanswered questions after the Commission's consultation.

"The problem is that when it comes to transmission of diseases there are always two levels. On the one hand, there is the individual level, the individual health of the aggrieved party. Their health and physical integrity are protected by Articles 111 and the following on those offenses at the beginning of the Special Section of the Penal Code. On the other hand, there is the disease-control part of it. This is the part that article 231 is meant to deal with. That was – how I learned from conversations with the Commission's members – the Commission's concern. Article 231 in its present form confuses these two levels. That is how, until now, for example an HIV positive person becomes guilty of bodily harm according to article 123 as well as the spreading of human diseases according to article 231.

"In their draft, the Federal Council completely revised article 231. They included a 'basic offense', a 'qualified offense', a 'privileged offense' and a 'negligent offense'. But they still adhered to article 231 protecting individual health as well as being effective for disease-control. This was obviously not what the Commission wanted, and so they slashed the article.

"Obviously, the Commission didn't want to adopt this concept. They only wanted to adopt the 'qualified offense', i.e. a highly criminal, if not even terroristic offense. This is about public health, i.e. the spreading of epidemics. This is what I adopted for my proposition. Possible intentional or negligent bodily harm or even manslaughter are covered by the regulations in Article 111 and the following of the Penal Code. Those are about individual health. Thus, criminal liability is only carried out under these regulations, but not anymore under Article 231 of the Penal Code on the spreading of human diseases.

"However, the Commission adopted the 'negligent offense'. I'll have to expatiate on this.

"The negligent perpetration is already regulated under the Administrative Criminal Law. Having an article in the Penal Code on this is unnecessary, because this regulation is already included in Articles 82 and the following of the Epidemics Law, which you have just enacted without discussion. Negligent perpetration is already included there.

"The Commission's version is not possible, because the Commission eliminated the 'basic offense'. You can't be 'negligent', 'malicious' and 'unscrupulous' at the same time, that's just not logical. Paragraph 2 would become ineffective, but at the same time it would also prevent the application of the Administrative Criminal Law, because Article 82, paragraph 1 excludes applying the Administrative Criminal Law, because the Penal Code does have this regulation.

"Therefore, I ask you in the name of the parliamentary group of the Green Party to accept my proposition as an individual, in order to clarify the punitive laws."

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About this blog

This blog is now incorporated into new HIV Justice Network website which is intended to be a global information and advocacy hub for individuals and organisations working to end the inappropriate use of the criminal law to regulate and punish people living with HIV. There you will find the latest news and cases, searchable by date, country, and case type, plus all kinds of advocacy resources (including video). The information on the website is also classified by 25 topics, under six headings: Advocacy; Alternatives; Impact; Law Enforcement; Laws and Policies; and Science.

The new HIV Justice Network website incorporates all the posts from my blog, Criminal HIV Transmission, which I began in 2007. Little did I know at the time that it would become an important global resource, filling a much-needed gap by capturing what is happening in real time. It was only when I attended AIDS 2008 in Mexico City, and discovered how many people knew of me and my work, that I realised how useful a resource it had become for advocates, researchers, lawyers and others from all over the world.

Knowing that the blog served as an international information and advocacy hub placed enormous pressure on my time and personal resources. Until the beginning of 2012, the blog and its associated advocacy work received no funding – save the few wonderful individuals who donated via Paypal and a small grant from IPPF (thank you!). So I’m very grateful to The Monument Trust for its generous support which has allowed me to sustain, develop and expand the blog into the HIV Justice Network. I’d also like to thank Kieran McCann and Thomas Paterson from NAM, who designed and developed the site, as well as NAM’s Executive Director, Caspar Thompson, for his support and guidance.

HIV and the Criminal Law

This international resource, HIV and the Criminal Law, which I wrote and edited for NAM, is available as an A5 book and at www.aidsmap.com/law. To order your copy visit www.aidsmap.com/law, or contact NAM at +44 (0)20 7840 0050, email: info@nam.org.uk If you are based in a low or lower middle income country, as defined by the World Bank, and would like a free copy of this book please contact NAM.

Why Criminalisation Matters

Click on the image above to listen to Sean Strub, Catherine Hanssens, Vanessa Johnson and I discuss why HIV criminalisation in the US is a major issue for public health and human rights. The panel took place in February 2011 as part of the eQuality Thinking virtual convention.

Funders Concerned About AIDS

I delivered the keynote address, 'Combating HIV Criminalization at Home & Abroad', to the annual gathering of US-based HIV funders in Washington DC in December 2010. Video of my presentation is now available. Visit the FCAA website to watch it online.

Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward

This meeting by and for advocates against the criminalisation of HIV nondisclosure, exposure and non-intentional transmission was held on July 18th 2010 prior to AIDS2010 in Vienna and co-organised by the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV and NAM.

This poster presented to the XVIII International AIDS Conference in Vienna in July 2010, highlights how the US criminal justice system routinely breaches international human rights standards [click on the image to download an interactive pdf file]